Environmental Planning and Assessment Act 1979 No 203
Current version for 19 November 2014 to date (accessed 29 November 2014 at 06:17)
Part 4ADivision 1

Division 1 Certification of work and other matters

109C   Part 4A certificates

(1)  The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:
(a)  a compliance certificate, being a certificate to the effect that:
(i)  specified building work or subdivision work has been completed as specified in the certificate and complies with specified plans and specifications or standards, or
(ii)  a condition with respect to specified building work or subdivision work (being a condition attached to a development consent or complying development certificate) has been duly complied with, or
(iii)  a specified building or proposed building has a specified classification identified in accordance with the Building Code of Australia, or
(iv)  any specified aspect of development complies with the requirements of any other provisions prescribed by the regulations, or
(v)  any specified aspect of development (including design of development) complies with standards or requirements specified in the certificate with respect to the development,
(b)  a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),
(c)  an occupation certificate, being a certificate that authorises:
(i)  the occupation and use of a new building, or
(ii)  a change of building use for an existing building,
(d)  a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919.
(1A)  A single compliance certificate may deal with any number of matters, whether of the same or of a different kind.
(2)  An occupation certificate:
(a)  may be an interim certificate or a final certificate, and
(b)  may be issued for the whole or any part of a building.
(3)  If the regulations so provide, a construction certificate may be issued subject to conditions.
(4)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

Notes. 

(1)   Sections 109M and 109N prohibit the occupation or use of a new building, and the change of building use for an existing building, unless an occupation certificate has been issued for the building.

(2)   A plan of subdivision (whether or not the subdivision requires development consent) is not in registrable form for the purposes of the Conveyancing Act 1919 unless it is endorsed with a subdivision certificate issued under this Division. Plans prepared for the purposes of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 are not plans of subdivision within the meaning of section 195 of the Conveyancing Act 1919 and are therefore not subject to this Division. The regulations under the Conveyancing Act 1919 provide for the manner and form in which a plan of subdivision is to be endorsed for the purpose of enabling the plan to be registered under that Act.

109D   Certifying authorities

(1)  Subject to subsections (2) and (3), the following kinds of Part 4A certificate may be issued by the following kinds of persons:
(a)  a compliance certificate may be issued by:
(i)  a consent authority, the council or an accredited certifier, or
(ii)  a person of a class prescribed by the regulations as being authorised to issue a compliance certificate in relation to the matters to be certified,
(b)  a construction certificate may be issued by a consent authority, the council or an accredited certifier,
(c)  an occupation certificate may be issued by a consent authority, the council or an accredited certifier,
(d)  a subdivision certificate may be issued:
(i)  in the case of subdivision the subject of development consent, by the consent authority or the council,
(ii)  in the case of subdivision that is not the subject of development consent, by the council,
(iii)  in the case of subdivision carried out by or on behalf of the Crown or a prescribed person, by the Crown or prescribed person or by any person acting on behalf of the Crown or prescribed person,
(iv)  in the case of subdivision of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority, by an accredited certifier.
(1A)  For the purposes of subsection (1) (d) (iv), an environmental planning instrument that identifies subdivision in respect of which a subdivision certificate may be issued by an accredited certifier may place restrictions on the issue of such certificates by accredited certifiers.
(2)  An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.
(3)  A subdivision certificate must not be issued for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision work.
(4)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

109E   Principal certifying authorities

(1)  The person having the benefit of a development consent or complying development certificate for development:
(a)  is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development, and
(b)  may appoint only the consent authority, the council or an accredited certifier as the principal certifying authority for the building work or subdivision work, and
(c)  may appoint the same principal certifying authority for both types of work or different certifying authorities.
(1AA)  The council must, if appointed under subsection (1), accept that appointment.
(1A)  Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.
(2)  Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority.
(3)  A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(a)  that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and
(b)  that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989, before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and
(c)  that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and
(d)  that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and
(e)  that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.
(4)  A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.
Note. Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.

109EA   Replacement of principal certifying authorities

(1)  A person may not be appointed to replace another person as the principal certifying authority for development unless:
(a)  the Building Professionals Board so approves in writing and the relevant council and consent authority are notified before the replacement occurs, or
(b)  the current principal certifying authority, the proposed principal certifying authority and a person who is eligible to appoint a principal certifying authority for the development agree.
(2)  An application to the Building Professionals Board for approval or a notification under subsection (1) is to be accompanied by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 and is to be in a form approved by the Board.
(3)  If the Building Professionals Board approves the appointment of the relevant council to replace another person as the principal certifying authority under subsection (1) (a), the council must accept that appointment.

109F   Restriction on issue of construction certificates

(1)  A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:
(a)  the requirements of the regulations referred to in section 81A (5) have been complied with, and
(b)  any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.
(1A)  A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.
(2)  A certifying authority must not refuse to issue a construction certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations made for the purposes of Part 4.
(3)  A certifying authority and (but only in the case of a certifying authority that is a consent authority) an employee of a certifying authority do not incur any liability as a consequence of acting in accordance with subsection (2).

109G   Restriction on issue of compliance certificates

A compliance certificate of the kind referred to in section 109C (1) (a) (i) or (ii) must not be issued for any building work or subdivision work unless a development consent or complying development certificate is in force with respect to the building or subdivision to which the work relates.

109H   Restrictions on issue of occupation certificates

(1)  There are two kinds of occupation certificates, as follows:
(a)  an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building,
(b)  a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building.

It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.

(2)  An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.
(3)  An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless:
(a)  a development consent or complying development certificate is in force with respect to the building, and
(b)  in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and
(c)  the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(d)  such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.
(4)  An interim occupation certificate must not be issued to authorise a person to commence a new use of part of a building resulting from a change of building use for an existing building unless:
(a)  a development consent or complying development certificate is in force with respect to the change of building use, and
(b)  the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(c)  such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.
(5)  A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless:
(a)  a development consent or complying development certificate is in force with respect to the building, and
(b)  in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and
(c)  the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(d)  such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.
(6)  A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless:
(a)  a development consent or complying development certificate is in force with respect to the change of building use, and
(b)  the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(c)  such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.
(7)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

109I   Effect of occupation certificate on earlier occupation certificates

(1)  A final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building.
(2)  An interim occupation certificate for a part of a building additional to the part or parts in respect of which an earlier interim occupation certificate is in force:
(a)  revokes the earlier interim occupation certificate, and
(b)  applies to the part in respect of which it is issued and to the part or parts in respect of which the earlier interim occupation certificate was in force.
(3)  An occupation certificate (whether interim or final) for a part of a building revokes any earlier occupation certificate to the extent to which it applies to that part.

109J   Restriction on issue of subdivision certificates

(1)  A subdivision certificate must not be issued for a subdivision unless:
(a)  the subdivision is not prohibited by or under this Act, and
(b)  in the case of subdivision that may not be carried out except with development consent, a development consent (or, in the case of complying development, a complying development certificate) is in force with respect to the subdivision, and
(c)  in the case of subdivision for which a development consent has been granted, the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, and
(c1)  in the case of subdivision of land to which a planning agreement referred to in section 93F applies, all the requirements of the agreement that, by its terms, are required to be complied with before a subdivision certificate is issued in relation to the plan of subdivision have been complied with, and
(d)  in the case of subdivision for which a “deferred commencement” consent under section 80 (3) has been granted, the applicant has satisfied the consent authority concerning all matters as to which the consent authority must be satisfied before the consent can operate, and
(e)  in the case of subdivision that relates to land within a water supply authority’s area of operations, the applicant has obtained a certificate of compliance from the water supply authority with respect to the subdivision of the land, and
(f)  in the case of subdivision the subject of an order made by the Court under section 40 of the Land and Environment Court Act 1979 concerning the provision of drainage easements, all such drainage easements have been acquired by the council as referred to in that section, and
(g)  in the case of subdivision the subject of a development consent for which the consent authority is required by the regulations to notify any objector:
(i)  at least 28 days have elapsed since the objector was notified, or
(ii)  if an appeal has been made by the objector within that time, the appeal has been finally determined.
(2)  Without limiting subsection (1), a subdivision certificate must not be issued for a subdivision that involves subdivision work unless:
(a)  the work has been completed, or
(b)  agreement has been reached between the applicant for the certificate and the consent authority:
(i)  as to the payment by the applicant to the consent authority of the cost of carrying out the work, and
(ii)  as to when the work will be completed by the consent authority, or
(c)  agreement has been reached between the applicant for the certificate and the consent authority:
(i)  as to the security to be given by the applicant to the consent authority with respect to the work to be completed, and
(ii)  as to when the work will be completed by the applicant.
(3)  Subsection (2) does not prohibit the issue of a subdivision certificate for part only of land that may be subdivided in accordance with a development consent as long as the requirements of that subsection have been complied with in relation to that part.
(4)  In this section:

certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted.

water supply authority means:

(a)  the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or
(b)  a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.

109K   Appeals against failure or refusal to issue Part 4A certificates

(1)  An applicant for:
(a)  a construction certificate, or
(b)  a final occupation certificate, or
(c)  a subdivision certificate,
may appeal to the Court against a consent authority’s (or, in the case of a subdivision certificate for subdivision that is not the subject of development consent, a council’s) decision to refuse to issue such a certificate or to issue a construction certificate subject to conditions.
(2)  An appeal under this section is to be made within 12 months after the date on which the decision was made.
(3)  For the purposes only of an appeal under this section, a consent authority or council is taken to have made a decision to refuse to issue a certificate if, following an application for the certificate, it has failed to issue the certificate:
(a)  in the case of an application for a construction certificate:
(i)  if the application is made on or before the date on which its associated development application is determined, within the relevant period referred to in section 82 (1) in relation to the development the subject of the development application, or
(ii)  if the application is made after the date on which its associated development application is determined, within 28 days after the application for the construction certificate was made, or
(b)  in the case of an application for a final occupation certificate, within 14 days after the application was made, or
(c)  in the case of an application for a subdivision certificate for subdivision that does not constitute State significant development or designated development:
(i)  within 14 days after the application was made, where development consent to the subdivision is required, or
(ii)  within 7 days after the application was made, where development consent to the subdivision is not required, or
(d)  in the case of an application for a subdivision certificate for subdivision that constitutes State significant development or designated development:
(i)  within 14 days after the application was made, or
(ii)  within 14 days after the period in which an appeal may be made under section 98 against the granting of development consent to that development, or
(iii)  if such an appeal is made, within 14 days after the final determination of the appeal,
whichever is the longer.
(4)  Nothing in subsection (3) prevents a consent authority or council from determining an application for a construction certificate, occupation certificate or subdivision certificate after the expiration of the relevant period prescribed by that subsection.
(5)  A determination pursuant to subsection (4) does not, subject to subsection (6), prejudice or affect the continuance or determination of an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made.
(6)  If a determination pursuant to subsection (4) is made by granting the certificate concerned, the consent authority or council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made) withdrawn at any time prior to the determination of that appeal.

109L   Accredited certifiers may issue notices requiring work to be carried out

(1)  An accredited certifier who is the principal certifying authority for any development may, by notice served on a person on whom an order under section 121B may be served, direct that person to do anything that the consent authority could require that person to do by means of such an order.
(2)  A notice under this section has the same effect as a notice referred to in section 121H (1), and the provisions of Division 2A of Part 6 have effect accordingly:
(a)  subject to the accredited certifier being:
(i)  present when representations are made under section 121I, and
(ii)  entitled to make representations to the consent authority or nominated person to whom the representations under section 121I are made, and
(iii)  entitled to have the representations made by the accredited certifier heard and considered under section 121J in the same way as the representations under section 121I are heard and considered, and
(b)  subject to such other modifications as the regulations may prescribe.
(3)  Within 2 working days after the date on which an accredited certifier serves a notice under this section, the accredited certifier must send copies of the notice:
(a)  to the council, and
(b)  if the development is the subject of development consent given by a consent authority other than the council, to the consent authority, and
(c)  if the person on whom the notice is served is not the owner of the land on which the development is being carried out, to the owner of the land.

109M   Occupation and use of new building requires occupation certificate

(1)  A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.

Maximum penalty:

(a)  in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia—5 penalty units, or
(b)  in the case of any other building—1,000 penalty units.

(2)  This section does not apply to:
(a)  the occupation or use of a new building for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or
(b)  the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or
(c)  the occupation or use of a new building by such persons or in such circumstances as may be prescribed by the regulations, or
(d)  the occupation or use of a new building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.

109N   Change of building use of existing building requires occupation certificate

(1)  A person must not effect a change of building use for the whole or any part of an existing building unless an occupation certificate has been issued in relation to the building or part.

Maximum penalty: 25 penalty units.

(2)  This section does not apply to:
(a)  a change of building use of an existing building if the change of building use is or forms part of exempt development or development that does not otherwise require development consent, or
(b)  the continued occupation or use of a building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or
(c)  a change of building use of an existing building by such persons or in such circumstances as may be prescribed by the regulations, or
(d)  a change of building use of an existing building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.

109NA   Provision of information to replacement principal certifying authorities

(1)  This section applies when a principal certifying authority (the new principal certifying authority) has been appointed to replace another principal certifying authority (the old principal certifying authority).
(2)  The new principal certifying authority may request the Building Professionals Board in writing to give a direction under this section if the new principal certifying authority is unable to obtain the prescribed information from the old principal certifying authority in relation to the matter for which the new principal certifying authority has been appointed.
(3)  The Building Professionals Board may give a direction in writing to any of the following persons to provide the prescribed information, or a copy of that information, to the new principal certifying authority within the period specified in the notice:
(a)  the old principal certifying authority,
(b)  a person whom the Board reasonably believes has possession of that information.
(4)  A person must not, without reasonable excuse, fail to comply with a direction given to the person by the Building Professionals Board under this section.
(5)  It is not a reasonable excuse for the purposes of subsection (4) that any person has a claim to a lien over any document or record that is prescribed information or any other right to keep such a document or record as security for payment.
(6)  In this section, prescribed information means the following:
(a)  if the old principal certifying authority is not a council, the documents and records required to be kept under section 60 of the Building Professionals Act 2005 by an accreditation holder in relation to the matter concerned,
(b)  if the old principal certifying authority is a council, the information required to be provided to the Building Professionals Board under section 74B of the Building Professionals Act 2005 in relation to the person who performed the certification work concerned on behalf of the council and the records required to be kept under that section by the council in relation to the matter concerned.

109O   Certifying authorities may be satisfied as to certain matters

(1)  For the purpose of enabling a Part 4A certificate or a complying development certificate to be issued by a certifying authority, the regulations may provide that any requirement for a consent authority or council to be satisfied as to any specified matter (or any matter of a specified class of matters) is taken to have been complied with if the certifying authority is satisfied as to that matter.
(2)  This section applies whether the requirement is imposed by or under:
(a)  this Act, the regulations or an environmental planning instrument, or
(b)  the terms of a development consent or complying development certificate.

109P   Satisfaction as to compliance with conditions precedent to the issue of certificates

(1)  A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume:
(a)  that the certificate has been duly issued, and
(b)  that all conditions precedent to the issuing of the certificate have been duly complied with, and
(c)  that all things that are stated in the certificate as existing or having been done do exist or have been done,
and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.
(2)  This section does not apply to a certifying authority (other than a council or consent authority) in relation to any Part 4A certificate or complying development certificate that the certifying authority has issued.

109Q   Regulations under Part 4A

(1)  In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:
(a)  the documents to be provided to, and the matters to be notified to, a consent authority, council or certifying authority for the purposes of this Part,
(b)  the records to be kept by certifying authorities under this Part,
(c)  applications for Part 4A certificates,
(d)  the form and content of Part 4A certificates,
(e)  the manner in which complaints in respect of development are to be dealt with by certifying authorities.
(f)  exempting classes of temporary structures from requirements relating to construction certificates or occupation certificates.
(2)  In particular, the regulations may authorise a consent authority or council to impose a fee with respect to any Part 4A certificate that is lodged with it, whether pursuant to a requirement of this Act or the regulations or otherwise.
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